November 2009

Willie Soon and David Legates, both respected members of the American Geophysical Union, tell the story of how their planned session to discuss scientific papers that consider the many contributing factors to climate variability was a “go,” until suddenly it wasn’t:

We developed this session to honor the great tradition of science and scientific inquiry, as exemplified by Galileo when, 400 years ago this year, he first pointed his telescope at the Earth’s moon and at the moons of Jupiter, analyzed his findings, and subsequently challenged the orthodoxy of a geocentric universe. Our proposed session was accepted by the AGU.

In response to its acceptance, we were joined by a highly distinguished list of scientists – which included members of the National Academy of Sciences of the USA, France and China, as well as recipients of the AGU’s William Bowie, Charles Whitten and James MacElwane medals. Our participants faithfully submitted abstracts for the session.

But by late September, several puzzling events left us wondering whether the AGU truly serves science and environmental scientists – or simply reflects, protects and advances the political agendas of those who espouse belief in manmade CO2-induced catastrophic global warming.

Could this AGU position have anything to do with it?

The scientific consensus on climate change was expressed in an open letter sent to the US Senate on last Wednesday, 21 October….

While the signatories represent a wide variety of scientific disciplines, they all came together to express their concern over anthropogenic climate change. The letter states: “Observations throughout the world make it clear that climate change is occurring, and rigorous scientific research demonstrates that the greenhouse gases emitted by human activities are the primary driver. These conclusions are based on multiple independent lines of evidence, and contrary assertions are inconsistent with an objective assessment of the vast body of peer-reviewed science.”

What about the independent lines of evidence of no global warming the last ten years, which the vast body could not see below their extended gut?

The Center for American Progress is criticizing Republican Gov. Tim Pawlenty of Minnesota (Hat tip: Tom Nelson) for his apparent flip-flop on anthropogenic causes of global warming, according to The Economist, which reported:

He recently explained that the earth might be warming, but that it is unclear “to what extent that is the result of natural causes.”

Hard to blame CAP, considering this is the kind of thing Pawlenty, a likely GOP presidential candidate, was saying two years ago:

Our global climate is warming, at least in part due to the energy sources we use. We cannot solve it by ourselves, but we need to lead and do our part. We also need to push for an effective national and international effort.

And only last year he assisted global warming activist groups, funded by the alarmist Rockefeller Brothers Fund, to produce this propaganda video. Key Pawlenty narrative:

I don’t think many people would disagree with the fact that what we’re doing is unsustainable — environmentally, economically, and from a national security standpoint. But we have a chance to try to make a difference, and to do good. (Emphasis Pawlenty’s)

Sprint to the right — the primaries start in only 26 months!

Conflict of interest, public disclosure and government ethics are usually one of the few issues where conservatives like myself can “kumbaya” with the mostly left-leaning opinion editors at major metropolitan newspapers, but a situation today raised by the Denver Post is one in which they’re right, but don’t go nearly far enough.

The Post‘s editorial board today praises a move by Alice Madden, a cabinet-level adviser (think “czar”) on global warming policy for Colorado Gov. Bill Ritter, to give up a $3,000 monthly stipend she receives from the liberal Center for American Progress. This followed a Post editorial on Wednesday which chastened Madden for accepting the supplemental cash due to a perceived conflict of interest.

We think state Climate Change Coordinator Alice Madden has crossed that line by accepting a monthly stipend from the liberal research group Center for American Progress….

…it makes us uneasy that someone with sway over state climate change policy, an important and politically charged arena, would be paid by a group with such a defined agenda.

We think our government officials ought to have greater distance from those sorts of groups so as to have unfettered freedom to suggest action that might cut across the grain of accepted thought.

All fine and good, except (as the Post goes on to note) Madden’s entire $80,000 annual salary is privately funded by the Hewlett Foundation, the Energy Foundation, and the Denver Foundation. This has been the case for at least two years, when I discovered that Madden’s predecessor, Heidi Van Genderen, had the same arrangement to cover her compensation. But even though the Independence Institute‘s Jon Caldara and I spent more than a little time in a sit-down session last year with Post editorial page editor Dan Haley and his board explaining the problem with the arrangement, they see it differently, as they wrote on Wednesday:

Madden’s position in the Ritter administration already was something of an eyebrow-raising anomaly. Her $80,000 salary is being funded by the Denver Foundation, the William and Flora Hewlett Foundation and the Energy Foundation.

While at least two of these groups support sustainable energy, they don’t exhibit the same degree of activism as the Center for American Progress, whose leader was co-chair of President Obama’s transition team.

We hope Madden rethinks the nature of her relationship with the group so as to put to rest any potential future questions about her independence.

That the Hewlett and Energy Foundations don’t “exhibit the same degree of activism” as CAP on the global warming issue is so not true that the Post should be embarrassed and run a correction, because Haley and company obviously haven’t spent the five minutes it would take on the two foundations’ Web sites to get the story straight. A sampling from Hewlett’s climate change page (arrival time, 20 seconds):

In 2007, the Hewlett Foundation worked with five other foundations to sponsor a study of what could be done to fight global warming. The ensuing report, “Design to Win,” concluded that policy reform is one essential step toward stabilizing temperatures. Working with international foundations and organizations in regions with the largest greenhouse gas emissions, the Environment Program makes grants to help create efficient energy policies. This work targets Europe, the United States, China, and Latin America….

…National policy, supported in part by the scientific analysis of Hewlett Foundation grantees, will eliminate 320 metric tons of U.S. carbon dioxide emissions in 2020. Our grantees continue to work on establishing sound energy and climate policies to increase energy efficiency and environmental health.

Also:

In Copenhagen this December, Hewlett Foundation grantees will join with representatives of approximately 170 countries and numerous other nongovernmental organizations to draft what participants hope will be a successor to the Kyoto Protocol, the international agreement to reduce greenhouse gases.

Hewlett spends tens of millions of dollars on climate initiatives annually. What degree of activism is that? Then there’s the Energy Foundation Web site, which is almost entirely about climate and sustainability (click-through arrival time: less than 5 seconds):

We seek to develop and promote a comprehensive, market-based climate change policy framework that creates jobs and puts the country on course toward a sustainable energy future. We focus primarily on national policy to cap and reduce carbon pollution, while also supporting precedent-setting state and regional programs.

EF issued over $107 million in grants during the last two years, almost completely related to energy and climate initiatives, since that’s the reason the foundation exists in the first place. The Center for American Progress should be so exhibitionist about their climate activism.

As Caldara and I told our Post pals 18 months ago, Van Genderen — and now her successor, Madden — could not have a more thorough and all-encompassing conflict of interest on their hands than they do by living off these foundations. Ritter also had a Utilities Commission liaison (sort of an additional “energy czar”) with a similar arrangement from the foundations — don’t know if he still does. Their positions either ought to be eliminated, or instead funded by taxpayers so they will be accountable to the public, not to environmental pressure groups.

Care to reconsider, Dan Haley?

Update 7:35 p.m. EST Friday: My friend, Independence Institute investigative reporter Todd Shepherd, broke the story last month that Gov. Ritter’s cabinet members all failed to follow an executive order for three years and file conflict of interest reports. It was in Madden’s report that her $3,000 payments from CAP were discovered. The Post reported on it four days later.

Oh dear!  Staunch trade proponent Fred Bergsten of the Peterson Institute is in bed with radical trade opponent Lori Wallach of Public Citizen in a joint op-ed in the Washington Post today.  It seems Bergsten thinks there’s no chance of a legislative cap on CO2 emissions unless the U.S. does something to address the competitiveness issues, and he’s against “border tax adjustments” because of its potentially devastating effect on the world trading system.

That’s the good part.  The bad part is that both he and Wallach want to combine the two issues – global warming and trade – and deal with them together. That was a recommendation that the Peterson Institute for International Economics made in a study earlier this year. What that would mean still seems a bit vague.  According to the op-ed, this synthesis would involve –

. . . a new code of “best practices” on greenhouse gas emission controls, including establishment of “policy space” for countries to limit emissions without sacrificing the competitive position of their industries. The institute also recommended that countries adopt a time-limited “peace clause” in which pursuit of new trade barriers would be suspended while the negotiations proceeded, and that a global climate accord be linked to a new global trade accord.

The synthesis would seem to involve  countries agreeing to a “code” that would address restrictions on CO2 emissions  and be generally consistent with WTO rules even if some technical rules would be violated.  Countries signing up for the code would agree not to bring those technical issues to the WTO for dispute resolution (the “peace clause”).

Those “technical” issues, in practice, however, are likely to become substantive issues, as countries enact  a broad array of restrictive  measures to protect their own industries.  But, never fear, the Peterson Institute also recommends in its book that the UN Framework Convention on Climate Change or some international arbiter decide when a code member isn’t in compliance with its international commitments.  Then, if that’s the case, other code members could take trade reprisals against that non-complying member.

Does this sound like a simple plan that would run smoothly?  Not in my book.

The article concludes with a bit of hyperbole — that the “only way to solve our problems is to treat them together.”  Otherwise, we’ll have “paralysis.”

Given the fact that global warming policy prescriptions have been extremely controversial even before the Kyoto Protocol 12 years ago, and the fact that the WTO’s Doha Round for 8 years has been mired down in disagreements among rich and poor countries, does it seem likely that putting these two divisive issues together will produce harmony?

The Chamber of Commerce recently bowed to pressure from big member companies which have crafted schemes to pick your pocket under cap-and-trade, and cravenly pleaded for some form of global warming legislation. It defended this with the argument distilled as “we merely restated our position. A different way.” So it is with Congress, in a fashion, with its controversial Sec. 707 identically stuck in both the Waxman-Markey and Kerry-Boxer bills.

Some on Team Liberty insist there’s nothing to see here, because you’ll notice that the language says the President “shall” exercise “existing statutory authority”. QED. My former CEI colleague Jonathan Adler adopts Ed Morrissey’s position posted on Hot Air, phrasing it on Volokh:

“The above provision grants no new powers to the federal government, let alone the President. Zero. Zilch. Rather, it directs the President to have agencies use “existing statutory authority” to ensure greater greenhouse gas emission reductions.  In other words, it requires the President to ensure that agencies are using all the tools Congress has already delegated to them to reduce greenhouse gas emissions – tools that such agencies could use even if the section is not triggered – and demands the President “submit to Congress” a request for additional authorities the President believes are necessary to ensure greater emission reductions.  Moreover, insofar as this provision constrains the Executive Branch’s discretion over what emission-reduction measures it wants to take, it actually reduces executive authority.”

That first part is true. It says use all existing authority. All of these tools. But, um, a (often radically) different way, that is, for a (often radically) different purpose. That “shall” thing is big, too. Leaning too heavily on “existing authority” to say there’s nothing new here has several perils, including that it ignores that this phrase is read by the courts as meaning existing laws, not existing applications of these laws. Jonathan is correct. Existing tools. This provision mandates using them in new ways.

It says use all existing authority – the Clean Water Act, NEPA, Endangered Species Act, and any federal law requiring a permit for any economic activity that does or could lead to GHG production – in a way that (to be charitable) is not at all clear is consistent with the legislative intent, design or otherwise (before this bill) feasible use.

This asserts on Congress’s behalf that these laws are now legislatively intended to serve as GHG suppression regimes. After establishing, in an earlier provision, causation by and harm from each and every existing or new increment of economic activity that uses or produces resources.

That’s new. That’s big. Both on its face and taken in context. All laws intended for purposes A, B, and C are now also expressly intended to be used – mandated – to chase an elusive global GHG concentration downward by emission avoidance. This is not the IRS getting Capone on tax evasion because the Feds couldn’t nail him for his racketeering, murder, etc. Tax evasion laws were intended to be used against tax evaders no matter what else those people did, and were employed for the purpose of prosecuting tax evasion.

Not every law on the books was intended to keep CO2 from being emitted. Now, everything in an enormous suite of laws intended to (again, being charitable) manage interstate commerce in the name of ensuring free-flow of goods, services, and other economic activity turned into an environmental law seeking, in practice, the rationing of permitted interstate commerce in the name of the atmosphere.

I have a book to write, right now. My earlier foray was not as short or concise as one prefers and pursues when one has the time. I didn’t, and still don’t. But the conclusion and argument there was still clear enough when read:

“My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/ avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists….

The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.

This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. ..Adopting such authority as that at issue here is not smart. The provision is not an accident. …This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference.”

So all remains the same. Just radically different. “But these laws could’ve been used as such, before!” Hmm. “Could’ve”, maybe, but that’s a stretch. But now they must. NEPA and ESA, with language and regulatory extensions sympathetic to that use, have been slouching there for some years and are just about there to different degrees but aren’t there yet. They, and every other law on the books – every one – now immediately are, if this passes. That’s new. That’s a big tool.

That’s what the Beacon Hill Institute attempts in an economic impact study of the recommendations produced last year by Wisconsin Gov. Jim Doyle’s Task Force on Global Warming. Unlike similar exercises in other states, where in most cases the Rockefeller Brothers Fund Center for Climate Strategies controlled outcomes but at least delivered some economic assumptions that BHI could chew on, the TFGW chose not to fantasize. Instead the Wisconsin panel decided to punt on the costs of most of their carbon-capping recommendations, with statements like “to be determined” or “costs were not estimated for this policy.”

Kind of surprising considering that the TFGW, instead of hiring CCS, chose the more prestigious and better-financed World Resources Institute as their management team. With an enormous research staff at their disposal you’d think they’d try to crunch some numbers, but then again, if the numbers just ain’t going to be all that pretty…

So as a result their work product is basically dung, but hey, sometimes even that is taken seriously by lawmakers and you’ve got to analyze it anyway. That’s what Beacon Hill did, extracting out 13 of the more than 50 unquantified proposals that they could calculate some estimates on.

BHI selected these (13) policies because the [TFGW] report provided specific information regarding costs and a description of the policy proposal.  Many of the [TFGW] policy recommendations are vague and do not provide enough information to conduct an analysis.

The report was published by the Wisconsin Policy Research Institute and embraced by Wisconsin Manufacturers and Commerce. It concludes that if all the policy recommendations are enacted, that:

• Wisconsin will lose 43,000 private sector jobs over 11 years.
• Wisconsin will add 12,000 government jobs.
• Motor fuel costs will increase $3.2 billion over 11 years.
• Electricity bills increase $16.2 billion by 2025.
• Every state resident will lose $1,012 a year in personal income by 2020.

As Milwaukee Journal-Sentinel columnist Patrick McIlheran writes today, “about 30,000 of you can get off the train to the 21st century economy right now.” From my view, I’ve seen these Blue Ribbon Task Force Peachy Panel proposals in most of the states now, and Wisconsin’s has got to be one of the worst: sloppy, lazy, with catatonic abiding in long-ago debunked assumptions.

At risk of getting into a peeing match which my time budget may not allow me to finish, I believe that the dispute between Ed Morrissey over at Hot Air and the folks at the Washington Examiner joining Sen. David Vitter (and, by implication, I suppose me) is not necessary but worth resolving. Caution: it is also for the legislatively inclined or otherwise the pointy-headed. But, since I arguably joined the fray on Big Government on Tuesday, here goes.

At issue is a provision buried in both the Waxman-Markey and Kerry-Boxer “global warming” bills.

I had to leave for a few hours after starting my comment on this, in which time I decided not to wage the war over how strongly we need to argue that it prima facie nullifies the rest of the respective legislative language that too many lobbyists tout was carefully crafted to provide “certainty”. Lobbyists of course tend to say things reflecting well on their defense of client interests.

What is inescapable is that this language dispels such notions of certainty. But that shouldn’t be shocking. The bills statutorily establish “global warming” causation, for every existing or new increment of GHGs (read: employers, economic activity), as well as harm caused. And they fail to preempt states and elsewhere EPA as needed, or the National Environmental Policy Act, Clean Water Act or Endangered Species Act, or every other tool that’s already being tried out as a “global warming” law. Let alone the rest of the U.S. Code. All of which is relevant to context, as we shall see.

My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists. Now, if you choose, read on.

The issue is whether this language poses a serious, substantive threat or not, with what I view as the controlling language emphasized:

‘SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS.

(a) AGENCY ACTIONS.-The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.-In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So, when viewing the meaning of this provision at issue in the appropriate context in order to view its most likely meaning, we also should note two things. First, no one says that this bill if perfectly implemented would control global concentrations of greenhouse gases – which is the trigger for deciding that “more” is needed, a trigger set where it will be exceeded ab initio – or that it would have a detectable climate impact. Which is to say, going in, we know that the answer by EPA and the National Academy of Sciences (kidding, right?) will be, also ab initio, “more”. Second, bear in mind that this language at issue was important enough to be identically inserted in bills otherwise so different that they range from about 800 pages to 1,300 pages in two different houses of Congress.

Ed styles what he sees as the Examiner’s/Vitter’s questionable reading of this as follows: “If true, it would undermine the entire notion of a cap-and-trade system – and give the President dictatorial powers over energy production and manufacturing.” (emphasis in original)

This is already sufficiently detailed that I do not think the best approach is to address the conflict as whether there are “emergency powers” for the president in the provision – that was rhetorical license, I believe, as there is no such category created here, if that’s the issue for anyone and, if it is, it’s the wrong issue. Although, in practice, a command to exercise any extension of all statutory authority found in the U.S. Code (including this bill), whatever the law or program may be, in the name of attaining some carbon dioxide objective beyond U.S. regulatory control is far too similar to such a description for me to decide that such word choice is the issue.

Instead, the issue appears to be whether this provision opens a floodgate of executive activism, and/or litigation seeking to compel a reluctant executive, such that the idea that the “cap-and-trade” is anything but a floor as opposed to the ceiling and patently phony “certainty” it is sold and, sadly, accepted by many as.

That is, the issue is the objective, first half of Ed’s framing of things, disregarding for the moment the latter characterization of the language’s possible use.

I think the answer to that is obvious. Yes.

Whether the latter characterization, as allowing (let’s say “plenary”) power over all manner of economic activity requiring federal permits, is found in this language depends upon whether the greens would sue to ensure the letter of the 707(a) authority is followed, and prevail. Now we are speculating. But I speculate yes they would, and their record and that of the courts is that they would prevail more often than not.

Remember. The 1990 Clean Air Act Amendments brought “certainty”. Then EPA started to get clever, and the greens litigious, with the New Source Review provisions. Certainty, lost. I suggest that no one familiar with that progression quickly dismisses the above language as a new, substantial threat.

Then we turn to the world before Massachusetts v. EPA “global warming” case which suddenly divined that, well, golly, EPA can regulate carbon dioxide as a pollutant. Compare that to the world after that opinion, which reminds and affirms that – even though the notion of covering CO2 as a “pollutant” under the CAA was debated in 1990, and rejected – once the greens and the courts get together, with a little assist from an activist administration and EPA, we know how things turn out. Far less ambiguity has been tortured by the courts, including now the Supremes (you gotta read Scalia’s Mass. V. EPA dissent), into confessing to things that previously were dismissed far more rakishly than Ed dismisses the concerns expressed by the Washington Examiner and Sen. Vitter.

This also reminds us that the authority for an agency to do something is not the same as a requirement that it do something. That is relevant to what I see as a red herring, the idea that this “shall” language does not create any new powers, be they “emergency” or otherwise. Tru, dat. Yet at the same time it also removes any potential question whether any provision in any law which an activist administration now claims is or can be used as a GHG suppression measure is now authorized to be one. Between that and creating new authority is, I suggest, a distinction without a difference.

Remember. The day this law goes into effect, atmospheric concentrations will already be beyond what the law says is acceptable. And nothing that we do could lower them. But pretty well everything we might possibly try is now authorized. EPA doesn’t even need any new authority to change the acceptable atmospheric concentration from 450 parts per million from to 350. It’s on. All laws on the books are now interpreted, consistent with legislative intent, as tools to reduce or avoid GHG emissions in the name of lowering a global concentration.

This is why I suggest context is so important to understanding the meaning of this language.

I won’t even get into possible separation of powers or delegation issues raised here (if the National Academy of Sciences says jump and how high the federal government of the United States must act? Really?). As such, my conclusion is as follows:

The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.

This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. So far, even in the absence of such a sweeping declaration, we rarely see the courts declare grants of authority as insufficient for all manner of mischief under the discretion granted EPA and other agencies called “Chevron deference”. That doctrine means that we have a fairly substantial burden of proving she was arbitrary and capricious in her interpretation of authority granted her by Congress.

EPA is already trying to implement the Clean Air Act to allow it to create a carbon dioxide cap-and-trade scheme in the context of a different cap-and-trade program the Agency had concocted despite recent admonition by a federal court that the Agency cannot just make up that very authority as it sees fit. It is also proceeding with what it calls a GHG “tailoring rule” to read the number 250 in the Clean Air Act as 25,000, even though the statute is clear that 250 means 250. And so on, as those of you who’ve toiled in the increasingly troubling field of EPA regulation know all too well.

Adopting such authority as that at issue here is not smart. The provision is not an accident. Remember. No one says this bill will have a climatic impact if the carefully designed caps and timetable are followed. If this legislation is indeed about the climate to its promoters, then this provision is intended just as it reads.

This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference. It effectively makes the cap and timetable mere sideshows, but inescapably ensures that seeking the refuge of “certainty” in this bill, as more and more CEOs have told me their lobbyists promise them is available here, is a fool’s errand.

In context, the reason for ensuring this precise language appeared identically in both “cap-and-trade” bills is clear. This is to be defeated, not dismissed. Guarding against alarmism on our side is proper. We should guard against dismissing broad grants or set-ups for interpretations of authority just as vigilantly.